Citation Nr: 21011426 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-16 640 DATE: March 1, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. FINDING OF FACT The Veteran’s current knee disability was not shown as chronic in service, and arthritis of a knee not manifested to a compensable degree within a year following his discharge from active duty; continuity of knee arthritis symptomatology is not established; and a right or left knee disability is not otherwise shown to be etiologically related to an injury or disease in service. CONCLUSION OF LAW Service connection for a bilateral knee disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1970 to March 1974. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 Department of Veterans Affairs (VA) rating decision. In November 2016, a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. In July 2017, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development of the claim. In March 2019, a Board hearing was held before the undersigned. In September 2019, the Board remanded the case to the AOJ for additional development of the claim. Entitlement to service connection for a bilateral knee disability The Veteran contends in statements and testimony at two hearings that he injured his knees in a documented fall from a Jeep during service in Vietnam in 1971, claiming that both knees struck the ground before his left elbow (which was the only condition shown to have been treated after the fall). He states that he experienced at least intermittent knee symptoms at times after service, particularly in wintertime, and that he self-medicated his knees for a long time before his knees condition worsened. He asserts (in a statement received in August 2017) that he has had problems with swelling of both knees since 2004. He sought medical attention for the condition from private care providers (including in the 1970s, 1980s, and 1990s, as reported on a January 2020 VA examination) before coming to the VA in about 2005. He also asserts that along with the fall his duties as a military policeman exacted a physical toll on his body, especially his knees. He relates that his duties included repeated climbs of 60-foot towers and 30-foot bunkers, constant patrolling on foot, crawling, heavy lifting, prolonged standing, and dodging mortar fire, rocket attacks and gun fire. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if manifested to a compensable degree within an applicable (one year for arthritis) presumptive period following separation from service; or, if noted in service, with continuity of symptomatology since service. 38 U.S.C. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an injury, event, or disease in service. The Board concludes that, while the Veteran has a current diagnosis of osteoarthritis of the right and left knees and right knee meniscal tear (surgically repaired in a March 2010 meniscectomy), and evidence shows that during service he fell from a Jeep, as claimed, and his duties included those of a military policeman, the preponderance of the evidence weighs against finding that his diagnosed right and left knee disabilities began during service or are otherwise related to an in-service injury, event, or disease. Service department records (DD Form 214) show the Veteran’s military occupational specialty in the Air Force was security policeman. Service treatment records (STRs) do not show complaints, findings, or a diagnosis of a knee disability, including on June 1973 service separation physical examination. While the STRs do show he received medical attention following a fall from a Jeep in August 1971, such treatment was only noted to be for an abrasion of his elbow. There is no documentary evidence showing that he injured a knee or both knees in the fall, or that he was seen for a knee complaint between the fall from the Jeep in August 1971 and his March 1974 military separation, despite his being seen for various other complaints (e.g., in the orthopedic clinic for an ankle sprain in September 1972). Further, on June 1973 service separation examination, his lower extremities were normal on clinical evaluation. In a report of medical history at that time, he specifically denied ever having had a joint or knee condition and wrote that present health was “good.” After service, the claims file contains private medical records dating back to at least 1994 and VA medical records dating back to about October 2004. The Veteran was seen by private care providers in July 2003 with complaints of right knee swelling and pain; the assessment was probable bursitis. He was seen again by private providers for right knee swelling in July 2006 and February 2007. A July 2006 VA outpatient record shows he was seen with complaints of having hit his right knee while relocating to a new home; the diagnosis was right knee bursitis. An August 2008 private record notes a complaint of one month of spontaneous right knee pain and swelling; the diagnosis was moderate osteoarthritis with acute synovitis. A September 2009 VA primary care note indicates a complaint of intermittent right knee pain and swelling. A February 2010 VA record notes the Veteran’s active problems included bursitis and meniscal tear, as well as osteoarthritis of both knees. Private records in February 2010 show he was seen for recurrent knee complaints, and an MRI of the right knee showed tricompartmental degenerative changes and a tear of the meniscus (he underwent a partial medial meniscectomy in March 2010). A November 2011 private record notes a complaint of generalized aching in both knees, and X-rays showed mild bilateral knee osteoarthritis. Other private X-rays showed moderate bilateral knee osteoarthritis in July 2015, severe right knee osteoarthritis in December 2016, and severe tricompartmental degenerative changes in both knees (right worse than left). VA X-rays in August 2019 showed mild left knee osteoarthritis and moderate right knee osteoarthritis. The Veteran’s post-service records thus show that he did not receive his current bilateral knee disability diagnosis until more than 25 years after his March 1974 separation from service. As shown above, medical records in the claims file do not demonstrate that the Veteran’s bilateral knee disability was chronic in service, that arthritis of a knee was manifested to a compensable degree within the one-year (chronic disease) presumptive period after service, or that it was noted in service with continuity of symptomatology. Therefore, service connection for a bilateral knee disability under 38 U.S.C. §§ 1110 and 38 C.F.R. § 3.303(a), based on inception in service, and under 38 U.S.C. § 1112 and 38 C.F.R. §§ 3.307, 3.309, based on presumed incurrence of a chronic disease in service, is not established. While the Veteran is competent to report having experienced knee symptoms during service and in the period between service and when first documented in the record, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the currently diagnosed bilateral knee disability. The issue is medically complex, as it requires medical knowledge informed by diagnostic medical testing such as an MRI or X-ray of the knee. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, under 38 C.F.R. § 3.303(d), service connection may still be granted on a direct basis if the evidence shows that the bilateral knee disability, which was first diagnosed decades after service, is etiologically related to in-service disease or injury (here, alleged injury from the documented fall from a Jeep or the duties from his service as a military policeman). A January 2020 VA examination and medical opinion addresses this question, and the Board deems this opinion to be adequate. It was furnished by a medical doctor and includes rationale based on consideration of the Veteran’s specific contentions and on application of medical principles to the particular facts of this case. The Veteran has not alleged that the examination and opinion are insufficient or that the physician is not competent to conduct the examination and provide the requested opinion. The January 2020 VA examiner opined that the Veteran’s diagnosed bilateral knee disability is less likely than not incurred in or caused by the claimed in-service Jeep injury and service responsibilities as a security policeman. She acknowledged that he fell from a Jeep during service, and noted that he was able to return to his duties thereafter. Citing to medical literature, she discussed degrees of musculoskeletal trauma and the types of symptoms that manifest following trauma. She found insufficient evidence to indicate that the Veteran’s reported knee trauma in service was severe enough to cause a significant knee joint injury. When asked to opine whether his reports of injury and symptoms (aches/pains/swelling ever since service) were sufficient with the other evidence of record to show a link between a current bilateral knee disability and an injury in service, she responded that there was insufficient evidence to establish a nexus to service for the current condition of bilateral knee osteoarthritis. She explained that there were numerous causes of knee pain and insufficient medical evidence to establish a diagnosis of osteoarthritis prior to 2008. She also noted bursitis was diagnosed in 2003 and 2006 but explained that it is a separate condition from osteoarthritis and would not be caused by remote trauma in 1971. She observed that the Veteran had a physically demanding job after service for several years and a job that entailed much standing, which could cause knee pain. When asked to report any medical reasons for rejecting the Veteran’s reports, she found the most likely reasons for his knee osteoarthritis with onset at over age 50 included genetic factors and advancing age. The examiner’s opinion is probative evidence, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The record does not contain any conflicting medical opinions addressing whether the Veteran’s bilateral knee disability is at least as likely as not related to an injury, event, or disease in service, including his fall from a Jeep and his activities as a military policeman. The Board notes that in August 2017, the Veteran submitted a VA DBQ (knee and lower leg conditions Disability Benefits Questionnaire) signed by his private physician in December 2016, which reflects a diagnosis of right knee osteoarthritis. Accompanying this report was an undated/unsigned form on which a box is marked to indicate that the Veteran was being treated for right knee osteoarthritis and that it was opined that his right knee condition was aggravated. The Board does not deem this record to be probative of the matter at hand; it is ambiguous as to its meaning and devoid of any rationale. The Veteran believes his bilateral knee disability is related to an injury, event, or disease in-service, but he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pathogenesis of his current bilateral knee disability and the ability to interpret MRIs and other diagnostic testing. It is outside scope of his competence because the record does not show that he has the medical training or credentials to make such determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.